While at first glance, an Attorney ad Litem and Guardian ad Litem seem to be substantially similar in their roles in divorce or custody proceedings, this could not be more far from true. Both are appointed pursuant to Florida Statute §61.401, but their function in a divorce or custody proceeding is quite different.
An Attorney ad Litem is appointed as a legal representative for the children; in the same way a litigant’s attorney represents their client’s interests, an Attorney ad Litem acts as an attorney for the children, protecting their interests. An Attorney ad Litem may not conduct a full investigation the way a Guardian ad Litem will; the Attorney ad Litem acts as a legal advocate in the children’s best interest. The Attorney ad Litem will have the ability to call witnesses on behalf of the child, object to evidence in court hearings, and examine witnesses one of the parents has called to the stand, among other abilities. Essentially, an Attorney ad Litem will act as a third attorney in the case.
Conversely, a Guardian ad Litem is appointed to act as a “friend” or investigator/evaluator on behalf of the children’s best interest. A Guardian ad Litem will conduct a thorough investigation on behalf of the best interest of the child and their sole goal is to make recommendations to the Court, based on the investigation and experience, what is in the best interest of the children. These investigations are often very thorough and include speaking to the child or children, observing the child or children with both of the parents, speaking to school caretakers, after-school caretakers, friends of the parents, other family members of the parents, and investigating the homes of both of the parents. This entire investigation will all go into the Guardian’s Report, which will be provided to the Court to assist in the Court’s determination.
An Attorney ad Litem acts as a legal advocate while the Guardian ad Litem acts as witness in place of the children. Rarely, a Court can appoint both an Attorney ad Litem and Guardian ad Litem, but the same person may not acts as both the Attorney ad Litem and Guardian ad Litem.
The Attorney ad Litem and Guardian ad Litem can be very valuable tools in assessing what is in the children’s best interest, protecting the children’s interests in cases where the children may be the only witnesses, and both can provide the Court information necessary to make a fair and fully educated decision.
It is important to know the Guardian or Attorney ad Litem before having them appointed to your case. Each Guardian or Attorney ad Litem has their own unique experience and training; knowing these experiences and training can make a big difference in the reliability of the Guardian’s report or the Attorney’s actions.